SZNYM v Minister for Immigration - [2009] FMCA 1273

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1273

MIGRATION – Review of decision of Refugee Review Tribunal decision – Court cannot draw inferences in absence of evidence – Tribunal entitled to consider all matters relevant to consideration of claims – Tribunal complied with all procedural fairness requirements – no evidence of bias – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.48A, 422B, 424A, 424AA, 425

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durarajasingham [2000] HCA 1; (2000) 168 ALR 407
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83

Applicant:

SZNYM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2367 of 2009

Judgment of:

Nicholls FM

Hearing date:

15 December 2009

Date of Last Submission:

15 December 2009

Delivered at:

Sydney

Delivered on:

23 December 2009

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 28 September 2009 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2367 of 2009

SZNYM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 28 September 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 August 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 22 June 2006. He applied for a protection visa on 19 September 2008. The application is reproduced in the bundle of relevant documents put before the Court by the Minister (Court Book – “CB”, CB 1 to CB 34). His wife applied as a member of his family unit.

Claims to Protection

The applicant’s claims were set out in a statement attached to his protection visa application (CB 33 to CB 34).
The applicant claimed to fear persecutory harm if he were to return to China because he was a Falun Gong practitioner. The applicant claimed that his wife took up the practice of Falun Gong, following an illness, and that it improved her health. In July 2005 took up the practice with her, and has been practicing since that time. He practiced with a friend at his home every weekend.
The applicant claimed that the authorities staged a “crackdown” after 2006, in lead up to 2008 (the “Olympic year”) on dissident groups, and that his friend and others were arrested and beaten. He was not detained because did not attend the practice on that occasion. He learned, however, that he was wanted by the Public Security Bureau (“PSB”). He fled and hid in a relative’s house in the countryside.
He claimed that in May 2006 his wife was taken away and charged with the practice of Falun Gong. He had to pay a bond for her release. His brother was arrested and detained for “attacking police”. His daughter was persecuted at school.
He came to Australia. His wife subsequently joined him on 10 August 2007. He urged her to apply for protection. She applied. This application was unsuccessful. (See Supplementary Court Book –“SCB” – for the application, SCB 1 to SCB 28, and the Tribunal’s decision on review – SCB 30 to SCB 49.)

The Delegate

The delegate interviewed the applicant. An account of this interview appears in the delegate’s decision record. (See CB 57 to CB 53 to CB 61.)
The delegate refused the application because he was not satisfied as to the credibility of the applicant’s claims. (See, in particular, CB 59 to CB 61.)

The Tribunal

The applicant applied for review on 12 January 2009 (CB 62 to CB 65). He subsequently appointed an agent to represent him on 22 January 2009 (CB 70).
He was invited to, and attended, a hearing with the Tribunal on 11 March 2009 (CB 78). His agent was not present. The Tribunal’s account of what occurred at the hearing is set out in its decision record ([43] to [76]). The applicant also submitted three documents to the Tribunal at the hearing ([44] at CB 85 to CB 90):
1)A letter from a person in China who stated that the applicant had practised Falun Gong for many years.
2)Another letter from a different Falun Gong practitioner in China who stated that the applicant and his wife were Falun Gong practitioners, that they had practised at her home, and that they were detained by the authorities.
3)Photographs that purported to show the applicant at a Falun Gong activity at the Law Courts Building in Sydney.
The Tribunal did not find the applicant to be a credible witness ([84]). This was based on:
1)The fact that even though he claimed to be a Falun Gong practitioner, in his evidence, despite opportunity, the applicant failed to mention a fundamental aspect of Falun Gong ([85]).
2)The applicant’s evidence at the hearing was vague and evasive at times. Examples of this included the applicant’s evidence as to whether he had ever been arrested and detained, and when he began to practice Falun Gong ([86]).
3)The change in the applicant’s evidence at the hearing as to what Falun Gong texts he had read in circumstances where there had been no confusion in his initial evidence ([87]).
4)The applicant’s evidence as to whether named fellow practitioners had been arrested due to their Falun Gong practice was confused. The applicant failed to explain discrepancies in his evidence ([88]).
5)The applicant’s evidence as to the authorities’ treatment of his wife changed during the course of the hearing ([89]).
6)That the applicant appeared to change his evidence when the Tribunal indicated that his initial answers may be problematic ([90]).
The Tribunal concluded that all of this indicated that the applicant was not being truthful and that his account was not based on actual events ([90]).
In addition, the Tribunal found the following to also raise doubts about the applicant’s credibility:
1)That in her application for a protection visa, the applicant’s wife did not mention that the applicant was also a Falun Gong practitioner ([91]).
2)The delay in the applicant making his claim for protection. (From June 2006 to September 2008.)
The Tribunal therefore rejected the applicant’s claim to be a Falun Gong practitioner, and his factual account of what he said had occurred in China, because it found him not to be credible.
The Tribunal gave no weight to his two witness statements because of his lack of credibility ([93]).
The Tribunal found that the applicant had not practised Falun Gong in Australia. This was because of relevant specific inconsistencies in his evidence about where, how, and with whom he practised, its finding of a lack of credibility generally, and its finding that he had not been a Falun Gong practitioner in China ([94]).
The Tribunal also did not accept that he had read any Falun Gong books in Australia because of the lack of credibility and the change in his evidence as to what books he claimed to have read ([94]).
The Tribunal, however, did accept that the applicant had attended a Falun Gong event in Sydney in September 2008, based on the photographs he had submitted. But given his lack of credibility, the Tribunal’s finding that he was not a Falun Gong practitioner in China, and that he had not practised Falun Gong in Australia, the Tribunal found that he engaged in this conduct for the purpose of enhancing his refugee claim. It therefore disregarded it pursuant to s.91R(3) ([95]).
In all, the Tribunal found that the applicant did not have a well founded fear of persecution in China for a Refugees Convention reason ([96]), and affirmed the delegate’s decision.

The Application

The application to the Court contains the following grounds:
“1. I was not considered fairly by RRT.
2. Jurisdictional error has been made.
3. Procedural fairness has been denied by RRT.”

Before the Court

The applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Mr J Mitchell of counsel appeared for the first respondent. Written submissions from the Minister were filed.
The applicant was granted leave to file written submission in Court (no objection taken).

The Applicant’s Submissions

The applicant’s submissions raised the following matters:
1)During the hearing, the Tribunal refused his request to demonstrate the five sets of Falun Gong exercises so that he could “defend” himself against the Tribunal, which thought that he was not a Falun Gong practitioner.
2)The Tribunal relied on information provided in the course of a hearing attended by his wife in connection to her (separate) review application. The applicant complains that he should have been put on notice so that he could have prepared prior to his hearing before the Tribunal.
3)An allegation that the migration agent who represented his wife was responsible for information appearing in her application which was found by the current Tribunal to be inconsistent with information provided by the application. At best, this is particularised with reference to whether the applicant and his wife were both in Australia at the time of the making of her application.
4)That the Tribunal was prejudiced because the applicant included his wife in his application and the Tribunal felt that he should not have done so.
In submissions before the Court the applicant raised the following:
1)The applicant pressed his claim that he was not permitted to perform the Falun Gong exercises. He submitted that this was important because the Tribunal’s decision was “based on personal knowledge of Falun Gong”, and this was a way of demonstrating his knowledge.
2)He pressed the complaint about his “wife’s evidence”. He complained that he did not know in advance what questions the Tribunal was going to ask in this regard.
3)He complained about the assistance provided by his wife’s migration agent.
4)He pressed the complaint that the Tribunal was biased because of the view that it took of his having included his wife in his application. Further, that the Tribunal should not have asked questions arising from his wife’s application because this was a separate, independent application.
5)He took issue with the Tribunal’s finding that he had delayed for two years in making his application. He explained that this was because he was unfamiliar about how to do so in Australia. He lost confidence in the migration agent as a result of his wife’s experience, and he therefore made his application independently two years later.
The applicant also took issue with what was set out in the Minister’s written submissions at paragraph 2.8(b):
“(b) The Applicant’s testimony was vague and evasive as to whether he had been arrested or detained in China for his Falun Gong beliefs.”

Consideration

The applicant’s grounds are, at best, just broad statements that, without any hint of particularity, make it difficult to give any meaningful consideration. For this reason, I address first each of the applicant’s complaints put before the Court by way of submissions.

Consideration of the Complaints

The applicant complains that the Tribunal prevented him from performing the five Falun Gong exercises at the hearing. I understood the applicant to submit that, during the hearing, he spoke about Falun Gong books, he was asked whether he had read all of the Falun Gong books, and at this point he asked to be allowed to perform the exercises.
First, despite opportunity, the applicant has not put any evidence before the Court to support this assertion. At the First Court Date in this matter prepared orders were translated for the applicant, which included a reference to his providing relevant evidence by way of a transcript of the Tribunal hearing.
The applicant participated in the Court’s “RRT Legal Advice Scheme” and conferred with a barrister on the panel of the scheme. The applicant would have had the opportunity to understand how to go about putting such evidence before the Court.
As Mr Mitchell submitted, in the circumstances, the applicant must refer to some evidence to support his submission. It is not open to the Court to draw inferences about what may have happened at the hearing in the absence of such evidence (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 (“NAOA”)).
The only relevant evidence before the Court is what is contained in the Tribunal’s decision record. The Tribunal’s account of what occurred at the hearing clearly shows that in response to the Tribunal’s initial question as to what Falun Gong was: “… The applicant responded that Falun Gong was full sets of five practices …” ([46] at CB 104). What follows in succeeding paragraphs reveals extensive questioning about Falun Gong practice and meaning, including references to Falun Gong books ([48] to [49]), and claimed events in China arising from his claimed Falun Gong practice.
The Tribunal’s account revealed that, having questioned the applicant about these matters, the Tribunal specifically put certain information, and, in context, issues, to him for comment ([64] to [76]).
While this report revealed extensive discussion with the applicant, there is nothing to support the applicant’s claim that he requested, and was denied, the opportunity to perform the five Falun Gong exercises.
The applicant’s complaint can be properly understood as an allegation that he was prevented, pursuant to s.425 of the Act, from giving evidence about the critical issue in the review – namely, whether he was a Falun Gong practitioner, and whether he had a well founded fear of Convention related persecution as a result. There is no evidence before the Court to support this allegation. It cannot be made out.
For the sake of completeness, and in light of the applicant’s supplementary submission that the Tribunal based its decision, not on his personal knowledge of Falun Gong (as could have been demonstrated by his performing the five exercises), but on the literature that the Tribunal referred to in the course of the hearing, the reference to this literature is set out at paragraphs 78 to 82.
The Tribunal’s account of the hearing reveals that the applicant himself first raised the issue of Falun Gong books in answer to the Tribunal’s question as to what Falun Gong was ([46]). What follows reveals that the Tribunal then asked him if he had read the books, and what he understood about Falun Gong from the books ([47] to [49]).
The Tribunal drew on the applicant’s own responses to find, in part, as it arose from his evidence about the books, that his: “… evasiveness and vagueness was due to the fact that he was not telling the truth” ([86]).
First, the Tribunal’s appraisal of the applicant’s evidence, as Mr Mitchell submits, was open to it on what was before it. Second, the Tribunal’s questioning about the Falun Gong books was certainly relevant to the issue of his knowledge of Falun Gong and its practice. Third, the applicant himself raised the issue of the books in connection to what Falun Gong was about.
The applicant’s complaint now can really be seen as some attempt, in part, to “excise” from the Tribunal’s proper consideration the unsatisfactory nature of the evidence that he gave. It may be that the applicant now wishes that he did not raise the issue of the books with the Tribunal, but this does not reveal error on the part of the Tribunal.
The applicant’s second complaint is that the Tribunal used the “evidence” from his wife’s application “against” him, that it should not have done so because that was a separate and independent application and, in any event, should have given him its questions prior to the hearing so that he could prepare himself for such questions.
It is clear that, with reference to what is set out at Supplementary Court Book (SCB 1 to SCB 28), the applicant’s wife did indeed make a separate application for a protection visa on 6 August 2007.
That fact alone, however, does not prevent the Tribunal from having regard to the wife’s application as the applicant now submits. The Tribunal is entitled to consider those matters which are relevant to the consideration of the applicant’s own claims.
A number of factors make the wife’s application relevant to the application before the Tribunal.
First, it was the applicant himself who established the relevant connection. In his statement attached to his protection visa application, the applicant said (CB 33.10 to CB 39):
“Later, my wife was persecuted in China for practicing Falun Gong. She came to Australia on August 10, 2007. I urged her to apply for protection and she applied through an agency. But her application was refused. I have every reason to believe I and my wife fall with the definition of refugee. I plead with the Australian government to grant us protection.”
Second, the activities of an applicant’s wife, to the extent that the applicant asserts persecution for the same reason, and for the fact alone that they are married, contributes to the relevance.
Third, it was his statement that he “urged” his wife to apply.
Fourth, the applicant sought to include his wife in his own application (CB 27). (See further below.)
Fifth, the applicant told the delegate that he had been living with his wife since her arrival in Australia (CB 56.9).
These factors establish a clear connection between the applicant, his wife, and their claims for protection in Australia such that it was open to the Tribunal to regard as relevant what the applicant’s wife told the Australian authorities.
The Tribunal was entitled to proceed in this way, provided that it observed procedural fairness requirements in dealing with this material.
In this regard, the applicant’s complaint that the Tribunal should have given him the opportunity to consider its questions relevant to this matter prior to the hearing, does not reveal error for a number of reasons.
First, the applicant was on notice, following what the delegate had told him at the interview (on 16 December 2008), of the possible relevance of the wife’s application to his own subsequent, albeit separate, application (CB 57.4):
“The Delegate advised [the applicant] that information relating to his application for a Visitor Visa and his wife’s unsuccessful application for a Protection Visa had been obtained. The Delegate stated that this information is relevant to [the applicant’s] case and the information may be the reason or part of reason for refusing to grant him a Protection Visa.”

The delegate did use this information in his consideration of the application (CB 60.8 to CB 61.2).
In light of these clear statements, I do not accept the implication in the applicant’s submissions that he was somehow caught by surprise when the Tribunal questioned him about this at the hearing.
Second, as Mr Mitchell submitted, there is no obligation on the Tribunal to provide this information to the applicant prior to the hearing, or to provide a list of proposed questions.
I note that the latter, if it were a requirement, would make the hearing a meaningless exercise, as the very essence of a hearing before the Tribunal is to enable that “face to face” exchange, which distinguishes a hearing from the making of written submissions. Further, it would not allow for the Tribunal to properly explore, and test, the applicant’s responses.
In any event, this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias). The Tribunal’s procedural fairness obligations therefore arise from the matters set out in that Division (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83).
In this regard, the applicant was invited to a hearing pursuant to s.425. There is no obligation arising from that section on the Tribunal to provide notice in advance of the questions that it may ask.
Rather, its obligation is to ask those questions at the hearing that deal with the issues dispositive of the review, unless those issues arise as a result of the delegate’s decision, and to give the applicant the opportunity to address any such issues (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)).
The Tribunal did raise the issue of the wife’s protection visa application and its contents with the applicant at the hearing ([71] to [72]). It told him of the relevance of this information to its consideration of his claims ([72] to [74]).
The Tribunal’s obligation pursuant to s.424A(1) (also a part of Division 4) of the Act is that it must give to the applicant information that it considers to be the reason, or a part of the reason, for affirming the decision under review.
The exceptions to this obligation are set out in s.424A(3). The information in the wife’s application does not fall within any of these exceptions.
The Tribunal’s obligation is that it must give this information in writing (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009). Although there is no temporal requirement that it do so prior to the hearing, to the extent that what the High Court said in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) may imply the contrary, that point was not decided in SZBYR.
Section 424AA provides that the Tribunal may give such information to the applicant orally at a hearing pursuant to s.425, subject to the conditions set out at s.424AA(b).
What is set out at paragraphs 71 to 74 reveals that the Tribunal did put certain information arising from the wife’s application to the applicant. I agree with Mr Mitchell that there is no evidence before the Court that it did not do so in a manner that complied with s.424AA(b)(i).
What is set out at paragraph 64 reveals that the Tribunal told the applicant, in relation to all the information that would be the reason, or a part of the reason, for affirming the decision of the delegate, that he could comment at the hearing or seek more time to do so. The Tribunal reports: “… In each instance the applicant elected to respond immediately.”
On the best view of the evidence before the Court, therefore, in circumstances where the applicant has brought no evidence to the contrary, nor indeed makes any submission to the contrary, the Tribunal complied with the requirements in s.424AA.
In these circumstances, given the complementary nature of the relationship between s.424AA and s.424A, and the description of s.424AA as a facultative provision (see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”)), the Tribunal was able to rely on s.424A(2A) such that it was not obliged to put this information to the applicant in writing.
In all, therefore, the Tribunal complied with its relevant procedural fairness obligations in relation to the issue of the wife’s, albeit separate, application.
Incidentally, given the implication in the applicant’s submission that he should not have been caught without notice of the Tribunal’s intention to rely on this information because of some view now that this was a separate application, and that any implication has nothing to do with him, it was the applicant’s own evidence to the Tribunal that he had arranged for his wife’s application by contacting a migration agent who prepared the application for his wife based on what he and his wife wrote down for the agent ([71]), the same agent who is the subject of another complaint by the applicant.
In this regard, I understood the applicant’s complaint to have two elements. The first was to complain about the assistance provided by his wife’s former migration agent.
The applicant raised his complaints about his wife’s migration agent before the delegate (CB 60.8). The applicant was critical of findings made by the Tribunal that dealt with his wife’s application that his wife was not a witness of truth and not a Falun Gong practitioner. He claimed: “… that he and his wife were not fully consulted by the Migration Agent who facilitated her application for a Protection Visa” (CB 60.9).
As the hearing with the applicant, the Tribunal raised its concerns that in her application his wife made no mention that he was a Falun Gong practitioner, that they practiced together, or that they went into hiding, and its concerns with the discrimination faced by their daughter. It raised with him the fact that his wife, at her hearing before a differently constituted Tribunal, made factual claims in this regard, but did not mention the applicant’s claims to have been a Falun Gong practitioner. The Tribunal put to the applicant that if his account were true in this regard, it would have expected his wife to have also mentioned these matters ([71]).
The applicant’s response was that, amongst other things, he contacted a migration agent through a friend, and that while they wrote down their account, the agent completed the form, and it was the agent who wrote down that he was not in Australia. (See SCB 4).
The second element of the applicant’s complaint was that it was not open to the Tribunal, therefore, to use the information in his wife’s application in considering his application.
One of the elements (it must be said, only one of many) that contributed to the Tribunal’s adverse credibility finding in relation to the applicant was that his wife had not mentioned in her application, or at “her” Tribunal hearing, that the applicant practiced Falun Gong, or that they practiced together. The applicant gave an explanation for this, which was to place the responsibility for this omission on his wife’s migration agent, which he had arranged for his wife. The Tribunal requested his explanation in this regard ([91]).
First, as Mr Mitchell submits, a complaint about the migration agent, who the applicant said had represented his wife, is of no import in showing jurisdictional error in the Tribunal’s decision. This is particularly so in the context of any conduct which could be said to vitiate the powers before the Tribunal, in the sense set out in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
Second, the applicant told the Tribunal that he had arranged a migration agent for his wife, and had participated in the relationship with the migration agent, and that he and his wife relied on what the agent had told them to do.
The difficulty for the applicant in this regard is that there is no evidence before the Court that he or his wife had engaged the migration agent for her, other than the evidence which he gave to the Tribunal, and what he told the delegate.
As against this, that part of the wife’s application for a protection visa form which asks whether the applicant received any assistance in the completion of the form, is answered: “No.” That part which asks for details of any migration agent involved is left blank (SCB 9).
The wife appears to have signed a declaration that all the information in the application form was: “correct and up-to-date in every detail.” Her signature was witnessed by a Justice of the Peace (SCB 25).
The applicant complained before the Tribunal that his wife was not dishonest ([71]). Before the Court the applicant emphasised that his wife did not lie.
Unfortunately for the applicant, whatever tangled web that he and his wife have woven in the pursuit of their applications leads to the conclusion that either his wife made a false declaration (if she had received assistance from a migration agent, as the applicant told the delegate and the Tribunal), or he lied in his evidence to the Tribunal that a migration agent had assisted with the application form.
In all, it was open to the Tribunal to use what the applicant’s wife put, and said, in relation to her application, given that the material referred to by the Tribunal was relevant to the issue before the Tribunal. That is, whether the applicant was a Falun Gong practitioner, such that he feared persecutory harm in China. The Tribunal complied with the relevant procedural fairness obligations. If there was any migration agent involved in his wife’s application, then any “difficulties” that the applicant has experienced may be the subject of a complaint to the relevant migration agent regulatory authority, but it does not assist the applicant before this Court.
The forth item of complaint in the applicant’s written submissions is that the Tribunal was prejudiced because it went “against” the applicant “from the very beginning”, because he included his wife in his application (see CB 27).
Before the Court the applicant submitted that the Tribunal was biased by the fact that his wife was included as a “secondary” applicant in his application, in circumstances where she had been previously been refused a protection visa.
The test for bias, and even the apprehension of bias, is well settled. The relevant authorities make it very clear that such a claim must be clearly made and distinctly proven (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). It is a rare case that it can be made out with reference only to the Tribunal’s decision record alone (SCAA v Minister for Immigration [2002] FCA 668 per von Doussa J at [38]).
For the sake of completeness, I note that the applicant’s wife’s application for a protection visa, which was made in conjunction with her husband’s application, was not accepted because it was found that she was prevented by s.48A from making a further application for a protection visa (CB 42).
I cannot agree that the material before the Court reveals bias or the apprehension of bias on the part of the Tribunal. In fact, there is insufficient evidence to even provide a basis for making such a serious complaint.
The Tribunal’s analysis and reasoning in relation to the applicant’s claims and evidence before it does not reveal that the Tribunal brought a closed mind to the proceedings, or would reasonably be so perceived to have done so, because of his wife’s second attempt to apply for a protection visa, or otherwise.
What the applicant fails, or refuses, to comprehend is that, to a large part, the Tribunal’s rejection of the credibility of his account was based on his own evidence given to the Tribunal – evidence which the Tribunal found to be variously evasive, vague, changeable in response to questioning, and explanations in key areas which it found to be unbelievably confused, inadequate, implausible and inconsistent.
All of the Tribunal’s findings were open to it on what was before it. The applicant should understand that there was nothing capricious or arbitrary about the Tribunal’s reasoning. Its reasoning was cogent, and its findings probative of the material before it. The applicant’s complaint of bias is not, on what is before the Court, even a reasonable complaint, let alone a complaint that is made out.
Before the Court the applicant took issue with what was set out at paragraph 2.8(b) of the first respondent’s written submissions (see [27] above). The applicant told the Court that he did not say that he had been arrested or detained.
Mr Mitchell submitted that what is summarised at paragraph 2.8(b) was derived from paragraphs 58 and 80 (CB 107 and CB 113) of the Tribunal’s decision record.
The applicant now says to the Court that he did not say to the Tribunal that he had been arrested or detained.
It is difficult to understand the applicant’s complaint. The Minister’s submissions made no assertion to the contrary. Even if they did make such an assertion, then any error in the submissions does not, of itself, reveal error in the Tribunal’s decision.
Further, nor did the Tribunal make any such finding that the applicant had said that he had been arrested or detained. Any plain reading of the Tribunal’s decision record reveals that the Tribunal had some difficulty in obtaining a clear answer from the applicant as to whether he had ever been arrested or detained.
The Tribunal reports that it had to ask the question three times. Ultimately, the Tribunal understood that he: “… indicated he had not.” It was the evasive and vague responses received up to that point that led the Tribunal to find, in part, that the applicant was not a credible witness.
The applicant has put no evidence before the Court to challenge the Tribunal’s account of what happened.
The applicant also submitted before the Court that he took issue with the Tribunal’s finding that he had waited two years before making his protection visa application.
Other than for his now claimed disillusionment with his wife’s migration agent (dealt with above), the remainder of the applicant’s submission before the Court as to why he had delayed the making of the application was identical to the explanation that he gave to the Tribunal. (See [73].)
The Tribunal’s relevant finding (at [92]) was certainly open to it on what was before it. The Tribunal recorded the applicant’s explanation but, for the reasons that it gave, found it to be implausible. No error is revealed.

Ground One of the Application to the Court

The applicant claims that: “I was not considered fairly by RRT.”
To the extent that this may be a complaint that the Tribunal made an adverse credibility finding, such findings of fact are for the Tribunal to make and, without anything further, do not lead to jurisdictional error (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durarajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal’s findings, including its finding as to the applicant’s credibility, were open to it to make on what was before it.
Further, simply because an applicant is aggrieved by the decision does not mean that the decision was unfair. The application of the relevant test to the facts found may be perceived by an applicant to be unfair. This is not jurisdictional error.
This Court does not have jurisdiction to determine whether the Tribunal’s decision (in the sense of the decision as the outcome of the process of the review) was “fair”. The Tribunal is required to provide fairness in the procedures that it employs and applies. But as to the outcome, it is (as the High Court said in SZBEL at [25]) the case that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36 per Brennan J).

Ground Three

The Tribunal’s obligations to be fair are focussed on the procedures that it applies. However, in this regard, the applicant’s third ground, which asserts a denial of procedural fairness, is not made out.
This is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, absent bias, in relation to the matters that it deals with. (See [58] above.)
The applicant was invited to a hearing pursuant to s.425. Bearing in mind what the High Court said in SZBEL about procedural fairness and s.425, I note that the determinative issue that disposed of the review was plainly the adverse view that the Tribunal took of the credibility of the applicant’s claims and evidence. Following the delegate’s decision, the applicant would have clearly been on notice of this issue (CB 59).
But, in any event, the Tribunal’s account of what occurred at the hearing shows that the applicant would have been in no doubt as to what the dispositive issue was, given the Tribunal’s questioning, and statements, putting him on notice that his credibility was at issue. Each item of concern was squarely put to him. (See [65] to [74].) The applicant was given a reasonable opportunity to respond to the Tribunal’s concerns. That he was unable to otherwise satisfy the Tribunal, or that his explanations led the Tribunal to confirm its concerns, does not reveal error.
The applicant has put no evidence by way of transcript to challenge the Tribunal’s account of what occurred at the hearing. As Mr Mitchell submits, in the circumstances, it is not open to this Court to draw contrary inferences as to what may have otherwise occurred (NAOA).
Further, the Tribunal discharged any obligation that may have arisen pursuant to s.424A(1). Although, for the most part, this information either fell into one of the exceptions in s.424A(3), or was not “information” for the purposes of s.424A(1). (See SZBYR at [17] to [18].)
What the applicant told the delegate at the interview does not fall within any of the exceptions contained in s.424A(3). But the Tribunal employed the facility available to it by virtue of s.424AA to put this information to the applicant orally at the hearing. There was no error in the Tribunal also putting information that might otherwise fall into one of the exceptions to the obligation in s.424A(1).
The relationship between s.424A and s.424AA is facultative and complementary (SZMCD at [2] per Moore J). The relevant connecting mechanism being s.424A(2A).
On what is before the Court the Tribunal took steps to ensure that the applicant understood the relevance of the information to its decision.
Further, it gave the applicant the option of responding to the information at the hearing, or responding to it at a later time. The best evidence before the Court is that the applicant chose to respond at the hearing. (See [64].)
As the Minister submits, there do not appear to be any other procedural fairness obligations on the Tribunal. Ground three is not made out.

Ground Two

Ground two is a mere assertion of jurisdictional error on the part of the Tribunal. No particulars are provided. The applicant was unable to assist before the Court, beyond what is already set out above. I note, in this regard, that the applicant did access the Court’s “RRT Legal Advice Scheme”, and thereby had the opportunity to provide particulars.
As the Minister submits, without any particulars whatsoever, this complaint is meaningless. If what was put by way of submissions before the Court was meant to give particularity to this ground, then the ground is not made out for the reasons set out above.

Conclusion

For the applicant to succeed, the Court would need (at least) to find jurisdictional error on the part of the Tribunal. No such error is apparent. This application is therefore dismissed.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 23 December 2009